Canons of Statutory Construction, 0217 COBJ, Vol. 46 No. 2 Pg. 23

• Author: Christina Gomez, J.

46 Colo.Law. 23

Canons of Statutory Construction

Vol. 46, No. 2 [Page 23]

The Colorado Lawyer

February, 2017

Appellate Law

Christina Gomez, J.

This article examines the principles of statutory construction and highlights key interpretive doctrines applicable in Colorado's federal and state courts.

In 1814, a divided U.S. Supreme Court decided an "elaborately argued" case requiring construction of a federal trade statute-specifically, whether Congress intended that all articles imported into the country in violation of the statute must be forfeited, even if a third party had purchased them for consideration and without notice.^[1] In resolving that issue, and deciding the fate of the nearly 2,000 pounds of coffee that federal authorities had confiscated under the statute, the parties argued and the Court considered the "plain construction" of the statutory text, the rule as it existed at common law, and the "hardship and even absurdity" resulting from different interpretations.^[2] A majority of the Court ultimately held that if the coffee had been illegally imported, it had to be forfeited by the third-party purchaser.^[3]

Now, more than 200 years later, parties still elaborately argue and courts still disagree on issues of statutory construction, although the canons of interpretation have developed and extrinsic aids (like legislative history) have become more readily available. Colorado's appellate courts decide hundreds of cases involving statutory interpretation every year.^[4] The courts agree that the touchstone of statutory construction is arriving at the legislative intent, and that the starting point in construing a statute (or, similarly, a constitution, ordinance, or court rule) is teplain meaning of the text^[5] But what is the plain meaning of a statute? What if the plain meaning would lead to absurd results? What if the text is ambiguous? And which interpretation did the legislature intend?

Many canons of statutory construction may assist in resolving these issues. The General Assembly has enacted a general law providing instruction for the interpretation of Colorado statutes.^[6] Congress has done the same, in a more limited fashion, for federal statutes.^[7] But the canons of statutory construction are largely the same in federal and state courts, and the courts cite prior opinions (or sometimes secondary sources) addressing these canons far more frequently than they cite the statutory construction laws themselves.

Some commentators have argued that the statutory construction canons are contradictory and can be used to support equally plausible alternative interpretations. Even Justice Scalia and Bryan Garner, in their oft-cited text on legal interpretation, note that "[n]o canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions."^[8] Even so, a command of these canons is essential in any case involving statutory interpretation

This article provides a brief overview of the key interpretive doctrines applicable in Colorado's federal and state courts.

Plain Language

As indicated above, the starting point for statutory interpretation is the plain meaning of the statutory text. Courts apply a wide range of interpretive rules in determining what the plain language means. Some of the more commonly applied rules include:

• Words should be given their ordinary, common meaning at the time the legislation was enacted, unless the legislature provided a specific meaning, such as through defined terms in the statute.^[9]

• Dictionary definitions may help to elucidate a term's common meaning, and if the statutory text is dated, dictionaries in place at the time of adoption may be most useful.^[10]

• Words should be considered in context-both how the words are phrased (including grammar, syntax, and punctuation) and how they fit within the framework of the statute as a whole.^[11]

• Each word and provision should be given meaning, so as not to render any parts of the statute superfluous or ineffective.^[12]

• Terms should be given a consistent meaning throughout a statute.^[13]

• When the legislature uses different terms or provisions in different sections of a statute, it probably intends different results.^[14]

Interpretive Canons

Courts also apply various interpretive canons in analyzing statutory language. Many of these canons are derived from Latin maxims and are still referred to by their Latin labels. Sometimes courts will not apply these canons unless they find the text ambiguous, but other times they will apply these canons in ascertaining the plain, unambiguous meaning of the text.

Practitioners should note that different canons may apply in different circumstances; applying multiple canons may lead to contradictory results even within the same case; and courts may decline to apply a canon, for example, if doing so would lead to an interpretation that conflicts with the legislature's obvious intent.

Canons used on a relatively frequent basis include:^[15]

• The text should be construed to further, not to obstruct, a statute's stated purposes or policies-which often appear in an initial section of the statute.^[16]

• Statutory titles and headings may indicate meaning.^[17]

• "And" is usually conjunctive, while "or" is usually disjunctive.^[18]

• "Include" or "including" generally signifies a non-exclusive list of examples.^[19]

• "Must" and "shall" usually connote mandatory actions, whereas "may" or "should" usually connote discretion.^[20]

• The singular includes the plural, and vice versa, absent an indication of contrary legislative intent.^[21]

• The masculine includes the feminine, and vice versa.^[22]

• The present tense includes the future tense.^[23]

• "Person" includes corporate entities.^[24]

• Associated words bear on each other's meaning (noscitur a sociis)^[25]

• An adjective or adverb preceding or following a series of nouns, verbs, or phrases generally modifies each of them (series-qualifier canon).^[26]

• Under federal (but not Colorado) law, qualifying words or phrases are presumed to refer solely to the nearest antecedent, absent indication of a contrary intent (last antecedent rule).^[27]

• General words that follow an enumerated list of specific items are presumed to encompass only items of a similar kind (ejusdem generis).^[28]

• The expression of one thing indicates the exclusion of another (expressio unius est exclusio alterius).^[29]

• If two provisions cannot be interpreted harmoniously, and absent indication of a contrary legislative intent, a specific provision controls over, and creates an exception to, a conflicting general provision (generalia specialibus non derogant).^[30]

• When the legislature reenacts a statute without making any material changes, it is presumed to have approved of earlier administrative or judicial interpretations of that statute (reenactment canon).^[31]

• Conversely, when the legislature significantly amends the statutory language, it is presumed to have intended a change in meaning.^[32]

Deference and Scale-Tipping

Courts considering the meaning or application of ambiguous statutory text may apply certain starting assumptions. For example:

• A court will defer to the reasonable interpretation of an administrative agency charged with implementing the statute.^[33]

• Courts will assume a statute does not abrogate common law principles unless the statute speaks directly to the issue.^[34]

• Liberal or strict constructions may apply in certain instances-for example, remedial statutes may be liberally construed, waivers of immunity are...